SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-837-93T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
-v-
BRIAN P. HOFFMAN,
Defendant-Appellant.
_______________________________________________________
Argued September l3, l995 - Decided May 15,
1996
Before Judges Long, Brochin and Loftus.
On appeal from the Superior Court, Chancery
Division, Family Part, Atlantic County.
Christine M. Coté argued the cause for
appellant (Cooper, Perskie, April, Niedelman,
Wagenheim & Levenson, attorneys).
James F. Smith, Assistant Prosecutor, argued
the cause for respondent (Jeffrey S. Blitz,
Atlantic County Prosecutor, attorney).
The opinion of the court was delivered by
LONG, P.J.A.D.
On February 6, l992, a permanent domestic violence restraining
order was entered against defendant, Brian Hoffman, which
prohibited him from having contact with or making harassing
communications to his wife, Mary, and their children and which
forbade him from entering the premises on North Village Drive in
Somers Point and Belhaven Avenue in Linwood. Thereafter Mrs.
Hoffman filed criminal complaints against defendant alleging
contempt of the domestic violence restraining order (N.J.S.A.
2C:33-4(a)) and harassment, arising out of incidents which occurred
on April l6, l992 and on June 23 and 25, l993.See footnote 1
A bench trial was held at which Mrs. Hoffman testified that on
April l6, l992, at about l2:45 p.m., she was driving home when she
saw defendant's car on North Village Drive; defendant slammed on
his brakes; screamed at her (because her car windows were closed,
she could not hear what he was saying); gestured with his fist; and
then proceeded to point his finger at her in a gun-like gesture.
She further testified that on June 23, l993 she received a
letter addressed to her with defendant's return address (at the
county jail) on it.See footnote 2 In the envelope she found defendant's notice
of motion to decrease child support and a ripped-up copy of the
June 23, l992 support order he sought to modify. On June 25, l993,
Mrs. Hoffman received a certified letter from defendant. In it she
found another copy of the motion and a copy of the same court
order, in the same condition.
The trial judge found Mrs. Hoffman to be an "extremely
credible" witness and, on the basis of her testimony, concluded
that the incidents of April l6, l992 and June 23 and June 25, l993
occurred as she reported them. These were his only factual
findings. He made no findings as to the history of the parties'
relationship and did not expressly take that relationship into
account in reaching his conclusions. On the evidence, he found
defendant guilty of three violations of the February 6, 1992
permanent domestic violence restraining order as a result of the
contacts of April l6, l992, and the mailings of June 23 and June
25, l993. He also found defendant guilty of two counts of
harassment under N.J.S.A. 2C:33-4(a) arising out of the mailings.
Defendant was found not guilty of harassment in connection with the
events of April l6.
The trial judge sentenced defendant to a six-month custodial
term for the contempt of April l6. The judge then merged the
harassment convictions into the contempt convictions arising out of
the June 23 and June 25, l993 mailings and sentenced defendant to
a concurrent thirty-day custodial term on each conviction. These
sentences were to run concurrent with each other and with the
sentence for the incident of April 16.
Defendant appeals, contending that the following trial errors
warrant reversal:
POINT I:
N.J.S.A. 2C:33-4(a) AS IT PERTAINS TO A COMMUNICATION MADE IN "ANY OTHER MANNER LIKELY TO CAUSE ANNOYANCE OR ALARM" IS
UNCONSTITUTIONALLY VAGUE AS APPLIED TO
DEFENDANT'S ALLEGED CONDUCT.
POINT II:
THE TRIAL JUDGE'S FINDING THAT THE COMPLAINING
WITNESS' RECEIPT BY MAIL OF TWO (2) COPIES OF
A COURT ORDER IN A TORN CONDITION IS
HARASSMENT WITHIN THE MEANING OF N.J.S.A.
2C:33-4(a) IS UNSUPPORTED BY THE EVIDENCE.
POINT III:
THE MAILING OF THE TORN COURT ORDER WITH THE
PRO SE MOTION WAS NOT AN IMPERMISSIBLE CONTACT
IN VIOLATION OF THE RESTRAINING ORDER WHICH
WOULD THEREBY CONSTITUTE A VIOLATION OF
N.J.S.A. 2C:29-9(b).
POINT IV:
THE TRIAL JUDGE ERRED BY ADMITTING INTO
EVIDENCE COPIES OF THE ORDERS IN A TORN
CONDITION SINCE THE TRIAL JUDGE FOUND THAT
THERE WAS "NO CHAIN OF CUSTODY" ESTABLISHED
BETWEEN THE TIME THE COMPLAINING WITNESS
ALLEGEDLY RECEIVED THE DOCUMENTS AND THE TIME
THEY WERE INTRODUCED INTO EVIDENCE.
POINT V:
PROSECUTION OF THE CONTEMPT AND HARASSMENT
CHARGES ARISING OUT OF THE APRIL l6, l992
INCIDENT SHOULD HAVE BEEN BARRED PURSUANT TO
THE FUNDAMENTAL FAIRNESS DOCTRINE.
POINT VI:
THE TRIAL COURT ABUSED ITS DISCRETION IN
FINDING DEFENDANT GUILTY OF HAVING VIOLATED
THE RESTRAINING ORDER ON APRIL l6, l992.
POINT VII:
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
GRANTING DEFENDANT'S MOTION FOR A NEW TRIAL
OR, IN THE ALTERNATIVE, DISMISSING THE
RESTRAINING ORDER VIOLATION CHARGE BECAUSE OF
THE PROSECUTOR'S FAILURE TO PROVIDE
SPECIFICALLY REQUESTED DISCOVERY, PRIOR TO
TRIAL, OF TWO STATEMENTS BY COMPLAINANT.
We have carefully reviewed this record in light of these
contentions and have concluded that the arguments raised in Points
I, IV, V, VI and VII do not warrant our intervention but that the
contentions raised in Points II and III are meritorious.
We begin with the constitutional challenge raised in Point I.
Defendant claims that N.J.S.A. 2C:33-4(a) is void for vagueness as
applied to his mailing of the torn-up court order. The statute
provides:
2C:33-4. Harassment.
Except as provided in subsection d., a
person commits a petty disorderly persons
offense, if, with the purpose to harass
another, he:
a. Makes, or causes to be made, a
communication or communications anonymously or
at extremely inconvenient hours, or in
offensively coarse language, or any other
manner likely to cause annoyance or alarm;
b. Subjects another to striking,
kicking, shoving, or other offensive touching,
or threatens to do so; or
c. Engages in any other course of
alarming conduct or of repeatedly committed
acts with purpose to alarm or seriously annoy
such other person.
A communication under subsection a. may
be deemed to have been made either at the
place where it originated or at the place
where it was received.
d. A person commits a crime of the fourth degree if in committing an offense under this section, he acted, at least in part, with ill will, hatred or bias toward, and with a purpose to intimidate, an individual or group of individuals because of
race, color, religion, sexual orientation or
ethnicity.
Defendant argues that the language of the Section (a) which
proscribes communication made in "any other manner" fails to
delimit what communications are prohibited. More particularly, he
claims that "[a]lthough the statute was unquestionably designed to
protect persons from repetitive phone calls and abusive, physical
conflicts," it cannot be construed to interdict mail contact
because it does not specifically state that use of the mails
constitutes a communication. However, mail is a classic form of
communication, and nothing in the statute suggests mail is excluded
from its purview. That mail was intended to fall within the
coverage of the statute is underscored by the fact that the former
harassment statute, N.J.S.A. 2A:l70-29, was specifically limited to
verbal and telephonic communications while this version is not.
Presumably, by not including the limit on communication that
existed in the earlier act, the Legislature intended the term
"communication" in N.J.S.A. 2C:33-4(a) to be all-encompassing.
Defendant misreads State v. Finance Am. Corp., l
82 N.J. Super. 33 (App. Div. l98l) and Roe v. Roe,
253 N.J. Super. 4l8 (App. Div.
1992), neither of which suggests that the statute does not include
communication by mail. Clearly, defendant was on notice by the
very terms of N.J.S.A. 2C:33-4(a) that mail communication is within
the scope of its interdiction.See footnote 3
As to Point IV, no viable chain of custody issue was
presented because the evidence (the torn-up court order) was not
fungible but was an easily identifiable item which, in fact, was
identified by Mrs. Hoffman, thus laying the foundation for its
admission. Washington v. Virginia,
323 S.E.2d 577, 587 (Va. 1984).
As to Point V, no fundamental unfairness arose out of the
State's refusal to drop the prosecution for the April l6 incident
based on the July 8, l992 plea bargain. By its terms, the plea
bargain did not encompass the April l6 charge and there was no
evidence that defendant's reasonable expectations were not
fulfilled. Indeed, he does not actually claim that, at the time of
the plea bargain, he believed he could not be prosecuted for the
event of April 16, 1992. Even if he did, the record reveals that
defendant learned of the prosecution for the April l6 incident
prior to his sentencing, and thus could have retracted his guilty
plea which he did not attempt to do. This is powerful evidence
that defendant did not expect the plea to wipe the slate clean of
the April l6 incident. In sum, there was no reason for the State
to refrain from prosecuting.
The dismissal of the April l6 harassment count was based on
the fact that the State charged defendant under N.J.S.A. 2C:33-4(c)
which requires proof of a "course of conduct." The judge held that
no course of conduct was shown. This ruling did not preclude a
finding that defendant violated the domestic violence restraining
order, thus Point VI fails.
Finally, as to Point VII, it is clear that two documents
relative to the incident of April l6, l992 were not provided to
defendant until after the trial. Although not couched in these
terms, defendant is essentially arguing that the State violated
Brady v. Maryland,
373 U.S. 83, 83 S.Ct. ll94, l
0 L.Ed.2d 2l5
(l963). In order to establish a Brady violation, the defense must
demonstrate: (1) that the prosecutor failed to disclose the
evidence, (2) that the evidence was of a favorable character for
the defense, and (3) that the evidence was material. State v.
Landano,
271 N.J. Super. 1, 32 (App. Div.), certif. denied,
137 N.J. 164 (1994). As the trial judge held, the prior statements by
Mrs. Hoffman "essentially mirror[ed]" her testimony at trial and
could not have changed the outcome. Because the undisclosed
evidence was essentially cumulative there is no probability that
the verdict would have been affected. State v. Carter, 9l N.J. lll
(l982).
We turn now to the arguments raised in Points II and III of defendant's brief which, we believe, have merit. In Point II, defendant argues that with respect to the torn-up court order there was no evidence that his conduct was likely to cause annoyance and alarm, and that, in any event, a purpose to harass was not proved.See footnote 4
To address this issue, a closer look at this criminal statute is in
order. Pursuant to the statute, a person is guilty of harassment,
if, with the purpose to harass another, E.K. v. G.K., 24l N.J.
Super. 567 (App. Div. l990), he or she engages in an act prohibited
by the statute. Standing alone, proof of a defendant's purpose to
harass a victim is insufficient to sustain a conviction under
N.J.S.A. 2C:33-4. The purpose to harass must be coupled with the
performance of one of the acts proscribed by Sections (a), (b) or
(c) of the statute in order to constitute harassment. Cf. Grant v.
Wright,
222 N.J. Super. 191, 196 (App. Div.), certif. denied,
111 N.J. 562 (1988) (interpreting Section (c) of the act). These
sections address categories of conduct which can be broadly
described as communications, physical contact, and course of
conduct.
Under Section (a), which is at issue here, the prohibited acts
are communications likely to cause annoyance and alarm including
those made anonymously, at extremely inconvenient hours, in
offensively coarse language, or in any other manner; Section (b)
outlaws offensive touching including striking, kicking or shoving;
and Section (c) prohibits a course of alarming conduct or repeated
acts done with purpose to alarm or seriously annoy another.
The trial judge found that the mailings of June 23 and June
25, l993 were communications likely to cause annoyance or alarm
within the meaning of N.J.S.A. 2C:33-4(a). Whether this finding
passes muster depends on the meaning of those words. The
dictionary defines "to annoy" as to bother, irritate or irk.
Webster's Third New World International Dictionary (3d ed. 1981).
"Alarm" on the other hand denotes a sudden fear, apprehension or
disturbance caused by an awareness of danger. Webster's Third New
World International Dictionary (3d ed. 1981). Thus, "annoyance"
and "alarm" are quite distinct concepts in common parlance, the
former more innocuous than the latter. The question is whether by
using the word "annoyance" in Section (a), the Legislature intended
to criminalize irksome or vexing communications. We think it did
not.
We reach this conclusion by employing the well-established
principle of statutory construction that the meaning of a
particular word in a statute may be derived from the context in
which it is used. More particularly, we think the word "annoyance"
cannot be determined in a vacuum but must be ascertained relative
to the word "alarm" with which it is associated, Germann v.
Matriss, 55 N.J. l93, 220 (l970), and in connection with the
overall scheme of the statute. State v. Bander, 56 N.J. l96, 201-202 (l970). Viewed this way, the communications prohibited under
Section (a) of the statute are those which are alarming or which
cause annoyance of some moment, not those which are merely
nettlesome. That this is so is demonstrated by the legislative
examples of forbidden communications which precede the term
"annoyance" in the statute. These examples, including an anonymous
letter, a middle-of-the-night phone call, and the use of offensive
and coarse language are not merely minor irritants but are
significantly annoying acts which, depending on the circumstances,
might well cause a reasonable person fear and apprehension.
The same conclusion is reached when the term "annoyance" in
Section (a) is viewed against the backdrop of the statute as a
whole. Like the specific examples in Section (a), Section (b)
prohibits offensive touching including striking, kicking and
shoving. This is conduct, which by its very nature is at least
seriously annoying if not alarming. Similarly, Section (c) forbids
a course of alarming conduct or repeated acts committed with
purpose to alarm or seriously annoy the victim. In short, the
leitmotif which runs throughout the sections is a prohibition
against conduct of some consequence. By interpreting the word
"annoyance" in Section (a) in light of this clearly expressed
theme, we avoid giving a breadth to that term which logic and
reason and the overall subject matter of the statute do not show
was clearly intended. Thus we hold that only communications likely
to cause alarm or serious annoyance are the focus of N.J.S.A.
2C:33-4(a).
Applying these principles, the letters of June 23 and June 25,
which actually constituted a single communication served in two
different ways (ordinary and certified mail), fell short of the
statutory standard. The fair import of the torn-up support order
was that it would not be worth the paper it was written on when
defendant's motion was decided. While this was an over-the-top,
in-your-face gesture, it was neither likely to alarm nor seriously
annoy a reasonable person. Indeed Mrs Hoffman's testimony did not
suggest that it alarmed or annoyed her at all. On the contrary, it
was a relatively minor irritant attached to a legitimate legal
communication. Human nature being what it is, this is
unfortunately the kind of infantile tweaking we have come to expect
of litigants whose hopes and dreams for their marriage and family
life have been dashed. To be sure, all would benefit from raising
the level of discourse in this area. However, this can only be
achieved through the will of the litigants and not through the
criminalization of inconsequential acts the Legislature never
intended to prohibit.
Had defendant sent Mrs. Hoffman a picture of Nicole Brown
Simpson or a mutilated photograph of herself, the result might well
have been different. These acts would alarm or at least seriously
annoy a reasonable person. The torn-up support order simply does
not rise to that level.
We thus reverse defendant's harassment convictions arising out
of the mailings of June 23 and June 25, l993. This ruling makes it
unnecessary for us to grapple with the equally problematic question
of whether the State proved that defendant intended to harass the
victim by those communications. Even if he did, it would be of no
consequence to the outcome due to our holding that the letters were
not likely to cause annoyance or alarm to a reasonable person.
We turn finally to defendant's claim that the letters of June
23 and June 25 were not impermissible contact under the domestic
violence restraining order and that his convictions for contempt
stemming from those incidents should be reversed. The order of
February 6 stated that "defendant is prohibited from having contact
with" Mrs. Hoffman and the children. N.J.S.A. 2C:25-29(b)(6) was
cited as the basis of the prohibition. The order also prohibited
defendant from making "harassing communications" to the victim, the
children and the victim's mother. N.J.S.A. 2C:25-29(b)(7) was
cited in the complaint and judgment as the basis of this
prohibition. The judge found that
[s]ome communications are permissible. A
notice of motion is permissible, even though
it causes annoyance or alarm. It might even
be motivated by an attempt to cause annoyance
or alarm, but I think it would be immune from
prosecution, but the utilization of a ripped
up order clearly indicates to me that this was
a communication likely to cause annoyance or
alarm and intended to cause annoyance or
alarm. I am satisfied that it also ...
constitutes a violation of the order by merely
making contact....
We disagree with this analysis.
N.J.S.A. 2C:25-29(b) provides:
In proceedings in which complaints for
restraining orders have been filed, the court
shall grant any relief necessary to prevent
further abuse. At the hearing the judge ...
may issue an order granting any or all of the
following relief:
. . . .
(6) An order restraining the defendant from
entering the residence, property, school, or
place of employment of the victim or of other
family or household members of the victim and
requiring the defendant to stay away from any
specified place that is named in the order and
is frequented regularly by the victim or other
family or household members.
This section only prohibits a defendant from physically entering
certain locations, thus it does not prevent him from sending mail.
Accordingly, it cannot be the basis of a domestic violence contempt
order involving mail.
N.J.S.A. 2C:25-29(b)(7) provides:
An order restraining the defendant from
making contact with the plaintiff or others,
including an order forbidding the defendant
from personally or through an agent initiating
any communication likely to cause annoyance or
alarm including, but not limited to, personal,
written, or telephone contact with the victim
or other family members, or their employers,
employees, or fellow workers, or others with
whom communication would be likely to cause
annoyance or alarm to the victim.
On its face this section would support a judicial order prohibiting
all contact between a defendant and a victim. However, this was
not the version of the statute in effect when the domestic violence
order in this case was issued. That version provided that the
judge could impose:
(7) An order restraining the defendant from
making any communication likely to cause
annoyance or alarm including, but not limited
to, personal, written, or telephone contact
with the victim or other family members, or
their employers, employees, or fellow workers,
or others with whom communication would be
likely to cause annoyance or alarm to the
victim. [emphasis added]
This is the same standard as is contained in the harassment
statute. Because we have concluded that the communications of June
23 and June 25 were not likely to cause annoyance or alarm under
N.J.S.A. 2C:33-4(a) it follows that defendant could not have
violated the terms of the restraining order by those mailings.
Accordingly, the contempt convictions based on the June 23 and June
25, l993 communications must be reversed.
Our dissenting colleague's eloquent opinion has prompted us to
add these observations. No fair reading of our decision would
suggest that it is a repudiation of the trial judge's factfinding.
Indeed, we have fully accepted his findings as to what transpired
on April l6, June 23 and June 25 based upon his credibility
assessment of Mrs. Hoffman. Where we part company from him is in
connection with his legal conclusion that defendant's
communications were "likely to cause annoyance and alarm." Our
ruling is a matter of law on two specific points. First, we
construe "annoyance" as used in N.J.S.A. 2C:33-4(a) to mean conduct
which is significantly annoying and not merely irritating or
vexing. Second, we hold that the phrase "likely to cause annoyance
. . ." in N.J.S.A. 2C:25-29(b)(7) as that statute existed during
the period pertinent to this case incorporates the same standard as
the harassment statute. The dissenting opinion does not deal with
these holdings.
Buttressed by citations to numerous law review articles, the
dissenting opinion condemns sexual harassment. We join in that
condemnation. But our agreement on that point has not led us to
accept our colleague's proposed disposition of this case for the
legal reasons to which we have adverted. We note further that
there are no findings by the trial judge to establish the factual
context on which the dissent supports the conclusion that the torn
up orders were more than trivially vexing. Whatever legal or
sociological literature may say about patterns of conduct in cases
of spousal abuse, the disposition of a specific case must rest on
its adjudicated facts.
Finally, we are troubled by our dissenting colleague's
conclusion that our opinion trivializes the plight of domestic
violence victims. On the contrary, the problem of trivialization,
which we first identified in Corrente v. Corrente, supra, is much
more likely to flow from equating minutiae with matters of
consequence than from thoughtfully distinguishing between the two.
Because there is no challenge to the contempt conviction
arising out of the incident of April l6, l992, that conviction is
affirmed.
Affirmed in part; reversed in part.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-0837-93T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRIAN HOFFMAN,
Defendant-Appellant.
_________________________________________________________________
LOFTUS, J.S.C., (temporarily assigned), concurring and
dissenting.
I dissent from the majority opinion with regard to Points II
and III raised by defendant, Brian Hoffman (Brian) for the
following reasons: (1) the applicable standard of appellate
review mandates affirmance of the judgment of conviction of the
trial court; (2) Brian's conduct violated the statutory
provisions of N.J.S.A. 2C:33-4(a) and N.J.S.A. 2C:25-9(b); and
(3) the majority opinion triviliazes the plight of the domestic
violence victim.
At the time of the bench trial, Mary Hoffman (Mary) and Brian were estranged spouses who had been experiencing an emotionally turbulent and violent relationship for some time. On September 24, 1991, the court issued a temporary restraining order as a result of an incident during which Brian assaulted Mary. Mary subsequently withdrew that charge on November 19, 1991. On November 24, 1991, Brian was arrested and charged with assaulting Mary. Mary
subsequently withdrew the charge on December 19, 1991. On January
31, 1992, another temporary restraining order was issued as a
result of acts of domestic violence. This temporary restraining
order was made final on February 6, 1992.
The final restraining order prohibited Brian from future acts
of domestic violence, under N.J.S.A. 2C:25-29(b)(1); prohibited
Brian from having contact with Mary, her three children from a
former marriage and Mary's mother, under N.J.S.A. 2C:25-29(b)(6);
barred Brian from North Village Drive, Somers Point, New Jersey and
Belhaven Avenue, Linwood, New Jersey, under N.J.S.A. 2C: 25-29(b)(6); prohibited Brian from making harassing communications to
Mary, her three children from a former marriage and Mary's mother,
under N.J.S.A. 2C:25-29(b)(7). Mary was granted exclusive
possession of Belhaven Avenue, Linwood, New Jersey, under N.J.S.A.
2C:25-29(b)(7). Mary was also granted temporary custody of
Brandice and Margaret Hoffman, the parties' two children, and Brian
was prohibited from visiting the children pending completion of a
risk assessment to be followed by a plenary hearing as to
visitation under N.J.S.A. 2C:25-29(b)(3), (b)(3)(a) and (b)(11).
Brian was permitted to return to the marital residence on February
7, 1992 between the hours of 9:00 a.m. and 11:30 a.m. accompanied
by law enforcement officers to remove his personal belongings. The
order also directed Brian to pay support under N.J.S.A. 2C:25-29(b)(4). In February 1992, Mary instituted an action for divorce.
When Brian, accompanied by police officers, went to the
marital residence to remove his personal belongings in accordance
with the February 6, 1992 order, he went into the bedroom, took
scissors and cut most of her clothing which was hanging in the
closet in half while the officers were in the other room.
On April 16, 1992, while Mary was returning home after picking
up a support check from her attorney's office, Brian passed her
approximately eight houses away from her home. According to Mary,
he slammed his brakes on, appeared to shout something, shook his
hand in a fist form and pointed his index finger at her to imitate
a gun.
On April 17, 1992, at 1:20 a.m., Brian was arrested in the
Somers Point home and subsequently charged with burglary, attempted
larceny, criminal mischief, unlawful possession of a weapon, and
contempt of the final restraining order. On July 8, 1992, Brian
pled guilty to criminal trespass and to violation of the
restraining order. The remaining charges were dismissed by the
Atlantic County Prosecutor's office. Brian was sentenced on August
14, 1992, to 364 days in jail and three years probation.
On July 9, 1992, the day after Brian pled guilty to the April
17, 1992, charges, upon the advice of the prosecutor, Mary filed
charges against Brian for the April 16, 1992, car incident. Mary
testified that in her voluntary statement concerning the burglary
incident on April 17, 1992, she also advised the police officer of
the "car incident" of April 16, 1992. However, the incident was
not detailed in the April 17, 1992, police report beyond the brief
indication that "[Brian] passed [her.]"
On June 23, 1993, Mary received an envelope in the mail with
her address handwritten and the return address bearing Brian's name
and jail address. The envelope contained a motion to reduce
Brian's child support obligation, a financial statement and a June
23, 1992, order torn into pieces. The following day, Mary received
a postcard in her mailbox indicating there was a certified letter
for her at the post office. She picked up the envelope on June 25,
1993. It contained the same contents as the previous envelope,
with the exception that the "court order seemed to be torn-up
more." Pursuant to previous instructions, Mary notified the
Atlantic County Prosecutor's office. The bench trial ensued.
With regard to the contempt charge of February 6, 1992, the
trial judge found that the State had not met its burden of proof
and dismissed the complaint (FO-01-162-92B).
With respect to the April 16, 1992, charges (FO-01-308-93B)
involving the "car incident," the judge found Brian guilty as to
count one charging him with violating the final domestic violence
restraining order contrary to N.J.S.A. 2C:29-9(b). The judge
granted a directed verdict for Brian, as to the second count
charging harassment under N.J.S.A. 2C:33-4(c) because the incident
was only one incident and thus did not constitute a "course" of
alarming conduct.
The judge found Brian guilty of the remaining four counts
arising from the mailings of the torn-up orders, two counts of
contempt for violating the final restraining order contrary to
N.J.S.A. 2C:29-9(b) and two counts of harassment contrary to
N.J.S.A. 2C:33-4(a) (FO-01-15-94B and 16-14B).
The applicable standard governing appellate review in a case of this nature is that the fact-finding of a trial judge may not be disturbed if supported by adequate, substantial and credible evidence. Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992); Rova Farms Resort v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); State v. Johnson, 42 N.J. 146, 161-62 (1964). This court is obliged to accord special deference to findings "which were substantially influenced by the judge's opportunity to hear and see the witnesses and to have the `feel' of the case, which an appellate court does not enjoy." D.C. v. F.R., 286 N.J. Super. 589, 601 (App. Div. 1996). The task of an appellate court is not to reweigh the evidence but to determine if sufficient evidence exists. Roe v. Roe, supra, 253 N.J. Super. at 431.
The trial judge made the following findings of fact and conclusions of law:
I have for decision five counts, one of which deals with an [incident] of April 16th, 1992. In order to determine the verdict with respect to that charge, I'm really required to weigh the credibility of the complaining witness. I'm satisfied that that witness's credibility is unimpeachable. I am satisfied that the testimony that I received from Ms. Hoffman accurately reflects what occurred on April 16th, 1992 [the car incident]. I make that finding for two bases. The first is the manner in which her testimony was delivered to me. I saw Ms. Hoffman on the witness stand. I was able to evaluate her body language, the manner in which she reacted to questions, and the manner in which she related answers. The
manner in which her testimony was delivered was to me such as to invest it with a credibility and a worthiness of belief. I am satisfied that Ms. Hoffman accurately reflected what occurred on the 16th. Moreover, it has an internal consistency. It deals almost entirely and logically with the manner in which she had related prior occurrences between herself and Mr. Hoffman. I am absolutely satisfied that on April 16th Ms. Hoffman and Mr. Hoffman passed each other in a car. I am satisfied there was a short period of time when Ms. Hoffman was able to see Mr. Hoffman on North Village Drive. I find that Mr. Hoffman pointed his finger at her and shook his fist. That is a contact. It is a contact which was prohibited by the restraining order which I find was obtained by Ms. Hoffman and which was delivered to Mr. Hoffman and which prohibited contact. I reject any contention that I should disbelieve Ms. Hoffman because of inconsistencies with respect to that testimony. In the real world, . . . details sometimes escape people, but the incident which was described is clearly related by Ms. Hoffman, and I'm satisfied that it did, in fact, occur. I'll enter a finding of guilty with respect to that charge, the first count of FO-01-308-93B. With respect to the charges alleged in FO-01-15-94 and 16-94, I am also satisfied that Ms. Hoffman received a notice of motion for a reduction in child support. I am satisfied that that notice of motion was accompanied by a ripped up order. In taking that testimony, again, for the reasons which I have just laid out, [I] accept the testimony of Ms. Hoffman, . . . I accept completely the testimony of Ms. Hoffman that she received the envelope, opened it, and found a ripped up letter. . . . I acknowledge in evaluating Ms. Hoffman's testimony that she is biased against Mr. Hoffman. I accept that. But the behavior which she exhibited was also consistent with a person who is truthfully telling what happened while she's in fear of the defendant. As to whether the document was intended to cause annoyance or alarm, I can think of no other motivation for ripping up a court order and enclosing it in a communication to an adverse party. It can only be intended to annoy or alarm. As to whether it is likely to cause annoyance or
alarm, I'm satisfied from the testimony here
that Mr. Hoffman had been incarcerated as a
result of incidents which had occurred in
which Ms. Hoffman was the victim. It seems to
me that a communication from him in any event
would be likely to cause annoyance or alarm.
Some communications are permissible. A notice
of motion is permissible, even though it
causes annoyance or alarm. It might even be
motivated by an attempt to cause annoyance or
alarm, but I think it would be immune from
prosecution, but the utilization of a ripped
up order clearly indicates to me that this was
a communication likely to cause annoyance or
alarm and intended to cause annoyance or
alarm. I am satisfied that it also
constitutes a violation of the order by merely
making contact, . . . . (emphasis added).
The trial judge had familiarity with this case. He found
Mary's credibility to be "unimpeachable;" that her testimony was
invested with "credibility and a worthiness of belief;" and that
she was a person who was "truthfully telling what happened while
she [was] in fear of [Brian.]" He based these evaluations upon her
body language, the manner in which she reacted to questions and the
manner in which she related answers. These findings with regard to
credibility are to be given great deference by an appellate court.
State v. Avena,
281 N.J. Super. 327, 340 (App. Div. 1995). The
judge's findings on credibility are significant in light of current
scholarly articles which indicate that, because of custom and law,
women, particularly in abusive relationships, are often disbelieved
because they are women and perceived as less credible than men.
Judith Resnik, Gender Bias: From Classes to Courts,
45 Stan. L.
Rev. 2195, 2205 (1993); Lynn Hecht Schafran, Credibility in the
Courts: Why is There A Gender Gap? The Judges Journal 5, 9 (Winter
1995) (citing Ellison v. Brady,
924 F.2d 872, 879 (9th Cir. 1991));
The First Year Report of the New Jersey Supreme Court Task Force on
Women in the Courts - June 1984, 9 Women's Rts. L. Rep. 129, 138
(1986).
The specific facts in this case indicate a pattern of an
abusive relationship. The two incidents of filing complaints and
then withdrawing them are illustrative of behavior of women in
abusive relationships. See Report of the Missouri Task Force on
Gender and Justice, at 29-30 (March 1993); Roe v. Roe, supra, 253
N.J. Super. at 423. Brian's acts of cutting up Mary's clothes
while two police officers waited in the next room indicate his
propensity for violent behavior. The act of driving his car into
the vicinity of her home and then pointing his finger at her in a
gun-like manner was "contact" with the victim contrary to the
restraining order which threatened her safety. The mailing of
torn-up court orders on two occasions were "communications" to Mary
which were sent with intent to harass and to annoy or alarm her.
They were violative of the final restraining order prohibiting him
from making "contact" with Mary or making "harassing communi-cations" to Mary. As such, they constituted harassment under
N.J.S.A. 2C:33-4(a) and contact in violation of N.J.S.A. 2C:29-9(b).
The findings of fact and conclusions of the trial judge are
supported by adequate, substantial, credible evidence in the
record. State v. Johnson, supra, 42 N.J. at 161-62. I would
affirm.
In this case Brian was found guilty of two counts of contempt for violating the final restraining order contrary to N.J.S.A. 2C:29-9(b) and two counts of harassment contrary to N.J.S.A. 2C:33-4(a) with regard to the torn-up court orders.
N.J.S.A. 2C:29-9(b) provides:
b. Except as provided below, a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the "Prevention of Domestic Violence Act of 1990," P.L. [1991], c.[261] (C.2C:25-17 et al.) when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense. In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of this act. Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of P.L. 1991, c.261 (C. 2C:25-29) shall be excluded from the provisions of this subsection.
N.J.S.A. 2C:33-4(a) provides:
Except as provided in subsection d., a person commits a petty disorderly persons offense if, with purpose to harass another, he:
a. Makes, or causes to be made, a
communication or communications anonymously or
at extremely inconvenient hours, or in
offensively coarse language, or any other
manner likely to cause annoyance or alarm;
(Emphasis added).
The majority opinion finds that the evidence in this case did
not support a finding of violation of the final restraining order
under N.J.S.A. 25-29(b)(7) and harassment under N.J.S.A. 2C:33-4(a)
because the mailing of the two torn court orders was not a
communication likely to cause annoyance or alarm and because it was
not "serious" annoyance or alarm. This interpretation is contrary
to the plain meaning of the statutes and to the Legislative intent.
A word or phrase should be accorded its normal and accepted
connotation as well as its ordinary and well understood meaning.
Fahey v. Jersey City,
52 N.J. 103, 107 (1968); State by Richman v.
Sperry & Hutchinson Co.,
23 N.J. 38 (1956); Jamouneau v. Harner,
16 N.J. 500 (1954), cert. denied,
394 U.S. 904,
75 S.Ct. 580,
99 L.Ed. 1241 (1955). "Annoy" means to "disturb or irritate, especially by
continued or repeated acts; to weary or trouble; to irk; to
offend." Black's Law Dictionary 89 (6th ed. 1990). "Alarm" means,
to "strike with fear; fill with anxiety as to threatening danger or
harm." Webster's Third New International Dictionary 49 (1993).
In subsection (c) of N.J.S.A. 2C:33-4, the legislature
specifically modified the verb "annoy" with the adverb "seriously."
It did not do so in subsection (a). The wisdom, good sense, policy
and prudence of a statute are matters within the provence of the
Legislature and not of the Court. White v. Township of North
Bergen,
77 N.J. 538 (1978).
Through the use of the ordinary and well understood meanings
of the words "annoy" and "alarm" in subsection (a), and in
considering Brian's conduct in the context of this case, the record
supports the requisite finding of a "purpose to harass" to sustain
the conviction under N.J.S.A. 2C:33-4(a). As to whether the trial
court's inference that Brian made those communications with an
intent to harass Mary, E.K. v. G.K.,
241 N.J. Super. 567 (App. Div.
1990), common sense and common experiences must guide. State v.
Richards,
155 N.J. Super. 106, 118 (App. Div.), cert. denied,
77 N.J. 478 (1978). An inference may be deduced from proven facts.
State v. Corby,
28 N.J. 106, 114 (1958); State v. Avena, supra, 281
N.J. Super. at 340.
Mary was a woman who had custody of five children, two of whom
were by Brian and three from a former marriage; whose husband had
been barred from coming near her house and had been denied
visitation to his children; whose clothes had been cut up by him
while police officers were in the other room; whose husband had
pointed his finger at her in a gun like manner; and whose husband
had criminally trespassed on her property. Her husband was in
jail. For what other reason except to annoy or alarm her did Brian
send the two torn-up court orders to Mary?
Under the factual circumstances of this case with the prior
pattern of an abusive relationship, violent acts and criminal
conduct, there could be no other reason for Brian to mail two torn-up court orders from jail but to alarm and annoy Mary, and through
such acts to indicate that her economic support would be cut off
and that she will not receive the protection of the courts. "Just
as a pattern of domestic violence is one means of exercising
control and domination over a household partner, so is stalking,
harassing or threatening an ex-spouse." State v. Zurmiller,
544 N.W.2d 139, 142 (N.D. 1996) (Levine, J., concurring).
Harassment under N.J.S.A. 2C:33-4(a) is a petty disorderly
persons offense, which does not require "serious" annoyance as
required by N.J.S.A. 2C:33-4(c). Harassment is not a third, second
or first degree crime subject to the lengthy mandatory terms of
imprisonment under N.J.S.A. 2C:43-6 and N.J.S.A. 2C:44-1. However,
it is prohibited criminal conduct. Matrimonial litigants are not
exempt from the responsibility of conducting themselves in an
appropriate manner nor are they exempt from the statutory sanctions
for violation of the criminal laws.
A court order represents the power and authority of the
judicial branch of government. It makes no difference whether such
order is for child support or a restraining order. In a
matrimonial case it represents society's method of resolving
conflicts in difficult emotionally charged situations between two
estranged persons. The court orders in this case which were torn
up were court orders setting forth financial terms of support for
the parties' children. To tear them up was not only an act of
defiance of judicial authority but for Brian to mail the torn up
court orders to Mary under these circumstances could have been for
no other purpose than to annoy or alarm her with the intent to
harass.
The present case is distinguishable from two previous
decisions of this court on the subject of harassment. In Peranio
v. Peranio,
280 N.J. Super. 47 (App. Div. 1995), and Corrente v.
Corrente,
281 N.J. Super. 243 (App. Div. 1995), this court reversed
two restraining orders issued because of alleged harassment under
N.J.S.A. 2C:33-4(c). In Corrente v. Corrente, supra, where there
was no history of assaultive behavior, this court found that there
was not a violation of N.J.S.A. 2C:33-4(c) because the phone calls
and the act of turning off the phone were not made with a purpose
to harass and did not constitute a course of alarming conduct.
Corrente v. Corrente, supra, 281 N.J. Super. at 243. In Peranio v.
Peranio, supra, where there was no history of assaultive behavior
and where there was no finding of "purpose to harass," the acts of
the husband in utilizing foul language and saying "I'll bury you"
after he forced entry into plaintiff's home was not harassment
under N.J.S.A. 2C:33-4(c). Peranio v. Peranio, supra, 280 N.J.
Super. at 55. In those cases, which fell under Section c, not
Section a, of N.J.S.A. 2C:33-4, there were no prior incidents of
domestic violence and no findings of a "purpose to harass." They
were individual isolated incidents.See footnote 5
In another case in Massachusetts, the Appeals Court affirmed
a finding of violation of a restraining order barring "contact"
where the defendant anonymously sent flowers to his former
girlfriend. Commonwealth v. Butler,
661 N.E.2d 666 (Mass. App. Ct.
1996).
I conclude that Brian's acts of sending two torn-up court
orders from jail to Mary violated the permanent restraining order
under N.J.S.A. 2C:29-9(b) and constituted harassment under N.J.S.A.
2C:33-4(a) because they were contacts and communications made with
a purpose to harass which were likely to cause annoyance or alarm
to Mary.
The majority in this case states that the acts of mailing the torn-up court orders are inconsequential acts, minor irritants and infantile tweakings engaged in by matrimonial litigants. These characterizations trivialize the plight of the domestic violence victim and indicate a cavalier treatment of criminal acts. Lynn Hecht Schafran, There's No Accounting for Judges, 58 Alb. L. Rev. 1063, 1065, 1067 (1995); James Martin Truss, The Subjection of Women . . . Still: Unfulfilled Promises of Protection for Women Victims of Domestic Violence, 26 St. Mary's L.J. 1149, 1201-02 (1995); Lynn Hecht Schafran, Gender Bias in Family Courts, Why Prejudice Permeates the Process, 17 Sum. Fam. Advoc. 22, 127 (1994); Judith Resnik, Revising the Canon: Feminist Help in Teaching Procedure, 61 U. Cin. L. Rev. 1181, 1189 n.38, 1194 n.66 (1993); Note, Home Sweet Home?: New Jersey's Prevention of Domestic Violence Act of 1991, 17 Seton Hall Legis. J. 234, 256 n.147 (1993); Note, New State and Federal Responses to Domestic Violence, 106 Harv. L. Rev. 1528, 1536 (1993); Mac D. Hunter, J.S.C., Homosexuals as a New Class of Domestic Violence Subjects under the New Jersey Prevention of Domestic Violence Act of 1991, 31 U. Louisville J. Fam. L. 557, 559 n.11 (1992/1993); Joan Zorza, The Criminal Law of Misdemeanor Domestic Violence 1970-1990, 83 J.
Crim. L. & Criminology 46, 72 (1992); Mary E. Asmus, Ellen L. Pence
and Tineke Ritmeester, Prosecuting Domestic Abuse Cases in Duluth:
Developing Effective Prosecution Strategies from Understanding the
Dynamics of Abusive Relationships,
15 Hamline L. Rev. 115, 121
(1991); Paul D. Tripodi, Achieving Equal Justice for Women in the
Courts, 1 U.C.L.A. Women's L.J. 209 (1991); Natalie Loder Clark,
Crime Begins at Home: Let's Stop Punishing Victims and Perpetuating
Violence, 28 Wm. & Mary L. Rev. 263, 288-89 (1987).
Domestic violence is a term of art which describes a pattern
of abusive and controlling behavior which causes injury to the
victim. Peranio v. Peranio, supra, 280 N.J. Super. at 52; see,
e.g., Marsha J. Kleinman, Family Violence: It can be a killer, 41
N.J. Psychologist (1991); Courtney N. Esposito, Abuse: Breaking the
Cycle of Violence: The Victim's Perspective, 8 Trends in Health
Care, Law and Ethics (Spring 1993), reprinted in Domestic Violence
(New Jersey Institute of Continuing Legal Education 1993).
The Prevention of Domestic Violence Act (repealed, L. 1991, c.
261 § 20, reenacted L. 1991, c. 261 § 1), N.J.S.A. 2C:25-17 to -33,
mandates that acts alleged by a plaintiff to constitute domestic
violence must be evaluated in light of the prior history of
domestic violence between the parties including previous threats,
harassment and physical abuse in addition to whether immediate
danger to the person or property is present. Peranio v. Peranio,
supra, 280 N.J. Super. at 54; N.J.S.A. 2C:25-29a(1) and (2). This
requirement contemplates the pattern of abuse of domestic violence
from which the Legislature sought to protect the battered victims -thereby acknowledging that domestic violence is more than an
isolated deviant act.
A "battered woman" is defined as:
a woman who is repeatedly subjected to any
forceful physical or psychological behavior by
a man in order to coerce her to do something
he wants her to do without any concern for her
rights. . . . [I]n order to be classified as
a battered woman, the couple must go through
the battering cycle at least twice.
[Leonore E. Walker, The Battered Woman, xv
(1979).]
The three distinct phases of the battering cycle are the tension
building phase, characterized by minor battering incidents; the
explosion or acute battering incident, characterized by out of
control rage on the part of the batterer; and the calm, loving
respite phase, characterized by loving and kind behavior on the
part of the batterer. Id. at 55-67; State v. Kelly,
97 N.J. 178,
193 (1984). In the battered women's syndrome, minor battering
incidents may trigger or escalate violent conduct. Ibid. Thus,
because of the potentiality of emotionally explosive situations
courts prohibit parties from contact and communication with each
other.
The Legislative, Executive and Judicial branches of government
in the State of New Jersey have taken a strong position with regard
to domestic violence.
When the Legislature enacted the Prevention of Domestic
Violence Law, N.J.S.A. 2C:25-17 to -33 it declared its purpose to
be as follows:
[t]he legislature finds and declares that
domestic violence is a serious crime against
society; that there are thousands of persons
in this State who are regularly beaten,
tortured and in some cases even killed by
their spouses or cohabitants; that a
significant number of women who are assaulted
are pregnant; that victims of domestic
violence come from all social and economic
backgrounds and ethnic groups; that there is a
positive correlation between spousal abuse and
child abuse; and that children, even when they
are not themselves physically assaulted,
suffer deep and lasting emotional effects from
exposure to domestic violence. It is
therefore, the intent of the Legislature to
assure the victims of domestic violence the
maximum protection from abuse the law can
provide.
[Ibid.]
At the signing of amendments to the Prevention of Domestic
Violence Law on August 12, 1994, Governor Christine Whitman said:
I'm here to encourage the victims to seek
the protection of the law; to say to them that
from now on, you are going to receive that
protection. . . . We are now sending a very
clear signal that we expect action and that
there are certain activities that are not
going to be tolerated, whether they take place
behind closed doors, between people who know
are another or among strangers on the street.
[excerpts in Ivette Mendez, Shielding the
Victim - Whitman Enacts Broader Tougher
Domestic Abuse Laws, The Star Ledger, August
12, 1994, at 1, 13.]
The New Jersey Court System led the nation in investigating
the extent to which gender bias existed in the court system and in
developing educational programs to eliminate it. The Domestic
Violence Subcommittee of the New Jersey Supreme Court Task Force on
Women in the Courts initially commented on the trivilization of the
plight of the domestic violence victim. New Jersey Supreme Court
Task Force Report, supra, 9 Women's Rts. L. Rpt. at 150.
The Judicial Council of California stated:
Again and again, this committee heard
testimony that police officers, district and
city attorneys, court personnel, mediators,
and judges--the justice system--treated the
victims of domestic violence as though their
complaints were trivial, exaggerated, or
somehow their own fault.
[Judicial Council of California, Achieving
Equal Justice for Women and Men in the Courts,
the Draft Report of the Judicial Council
Advisory Committee on Gender Bias in the
Courts, § 6, at 4-5 (1990).]
Other reports have addressed this issue. District of Columbia
Courts, Final Report of the Task Force on Racial and Ethnic Bias
and Task Force on Gender Bias in the Courts, 123-24 n.199 (1992);
Gender and Justice in the Courts: A Report to the Supreme Court of
Georgia by the Commission on Gender Bias in the Judicial System,
20-21 (1991); Kentucky Task Force on Gender Fairness in the Courts,
29-31 (1992); Report of the Special Joint Committee on Gender Bias
in the Courts, 2-5 (1989); Minnesota Supreme Court Task Force For
Gender Fairness in the Courts, Final Report, reprinted in 15, Wm.
Mitchell L. Rev. 825, 875-77 (1989); Report of the Special Joint
Committee on Gender Bias in the Courts, 2-5 (Md. 1989); Minnesota
Supreme Court Task Force for Gender Fairness in the Courts,
reprinted in 15, Wm. Mitchell L. Rev., 825, 875-77 (1989).
A case of this nature with a prior pattern of domestic
violence warrants serious reasoned judgment in light of the prior
history and specific acts involved. To characterize Brian's
conduct of mailing two torn-up support court orders under these
circumstances as minor irritants, inconsequential acts or infantile
tweakings is to trivialize Mary's plight.
For the reasons expressed, I respectfully dissent in part from
the majority opinion. With regard to defendant, Brian Hoffman's
Points II and III, I would affirm the judgment of conviction for
the reasons set forth by Judge George L. Seltzer in his oral
opinion of August 19, 1993.
Footnote: 1 Mrs. Hoffman also filed a complaint alleging that defendant violated the order on February 6, l992 based on information she received from a neighbor. This complaint was resolved in defendant's favor and is not an issue on this appeal. It is of note that Mrs. Hoffman did not file a complaint or tell the police of her allegation that defendant, accompanied by two police officers, went to her home to retrieve his possessions and cut up all her clothing. Footnote: 2 On April l7, l992, defendant was arrested in the Somers Point home and charged with burglary, attempted larceny, unlawful possession of a weapon, and contempt. On July 8, l992, defendant pled guilty to criminal trespass and contempt. Footnote: 3 Defendant claims by way of a single sentence that his actions "can be viewed as nothing but an indication of his disagreement with that order and, the voicing of that disagreement, the First Amendment would surely protect." Because defendant has
failed to brief this issue beyond this conclusory statement, we do not consider it. Miller v. Reis, 189 N.J. Super. 437, 441 (App. Div. 1983). Footnote: 4 Defendant also reiterates the argument that mailing correspondence is not covered by the statute. We rejected this claim in Point I above. Footnote: 5 The recent case of State v. Ettman, No. A-1833-94 (App. Div. August 21, 1995), is worth noting but is not cited as authority. See R. 1:36-3; see also Falcon v. American Cyanamid, 221 N.J. Super. 252, 261 (App. Div. 1987). In that case, the husband sent two support checks with the initials "O.J." written on them. This court affirmed the trial judge's finding that the insertion of the initials "O.J." on both support checks constituted a "communication" likely to cause annoyance or alarm and was done with the purpose to harass. Thus, the court affirmed the convictions for violation of a final restraining order contrary to N.J.S.A. 2C:29-9(b) and harassment contrary to N.J.S.A. 2C:33-4(a).